w w w . L a w y e r S e r v i c e s . i n



Iqbal Chaudhary v/s State of U.P. & Others

    Civil Misc. Writ Petition No. 40190 of 2013

    Decided On, 18 February 2014

    At, High Court of Judicature at Allahabad

    By, THE HONOURABLE MR. JUSTICE TARUN AGARWALA & THE HONOURABLE MR. JUSTICE RAJAN ROY

    For the Appellant: A.K. Rai, D.K. Singh, F. Ahmad, Advocates. For the Respondents: Ajit Kumar Singh, Dr. H.N. Tripathi, Vivek Varma, Advocates.



Judgment Text

Rajan Roy, J.

1. By means of this writ petition the petitioner is seeking renewal of the licence granted to him by the Nagar Nigam, Varanasi for slaughtering of animals at a private slaughter house situated at Kamal Gadha, Varanasi as also the resettlement and rehabilitation of the slaughter house after complying with the directions of U.P. Pollution Control Board and seeking their no objection etc. It is alleged that the petitioner was granted a licence by the Nagar Nigam, Varanasi for slaughtering animals at Pashu Vadhshala, Mohalla Kamal Gadha, District Varanasi. The said slaughter house had been in operation for the past 150 years. Earlier an order was passed by the State Government for closure of the said slaughter house and reallocation elsewhere which was the subject-matter of a suit filed by the shopkeepers of the said slaughter house before the IInd Additional Civil Judge, Varanasi bearing Suit No. 60/1967, Abdul Rahman and others v. Nagar Mahapalika and Suit No. 66/67, Hazi Mohd. Ibrahim and others v. Nagar Mahapalika. The aforesaid suit for permanent injunction was decreed on 25.7.1971 in favour of the plaintiffs and against the defendant Nagar Nigam. The defendant was restrained from interfering in the plaintiffs' use of the slaughter house at Kamal Gadha. It was further ordered that the slaughter house should not be closed otherwise than in due course of law. The petitioner alongwith others continued to carry out his business in the aforesaid slaughter house till 3.8.2006 when its closure was ordered by the U.P. Pollution Control Board, respondent No. 3 u/s 33A of the Water (Prevention of Pollution and Control) Act, 1974. Subsequently, on 5.12.2006, the operation of the order was put in abeyance for a period of six months on the request of the Nagar Nigam, Varanasi subject to fulfillment of the conditions mentioned in the said order issued by the respondent No. 3. The 8 conditions mentioned therein were regarding - submission of a proposal for reallocation of the slaughter house in an appropriate place within a period of one month; construction of concrete floor and raising the height of the boundary wall; blood consequent to slaughtering to be collected in a concrete tank and agreement to be entered with the concerned industries engaged in composting for disposal of dung and und

Please Login To View The Full Judgment!

igested material etc.; copy of the said agreement to be forwarded to the Board; agreement to be entered into with an upgraded/modernised slaughter house for the disposal of bones, carcasses and copy of the agreement to be sent to the Board; direction/guidelines issued by the Central Pollution Control Board for the slaughter house to be fully complied with; in the event of detection of environmental pollution resulting from the running of the slaughter house; the Nagar Nigam shall immediately order its closure; bank guarantee of Rs. 3 lakhs to be deposited in the prescribed proforma to ensure the compliance of the aforesaid conditions/orders. Though the aforesaid permission was granted only for a period of six months, that too subject to the fulfillment of aforementioned conditions, but the slaughter house continued to function beyond the aforesaid period without fulfilling the aforesaid conditions. Accordingly, vide order dated 13.1.2009, closure order dated 3.8.2006 was revived by the respondent No. 3. Thereafter again, on 5.2.2009, the order dated 13.1.2009 was put in abeyance for a period of six months for the same reasons and on the same terms and conditions as mentioned in the earlier order dated 5.12.2006. Consequently, the slaughter house again started functioning. On 29.3.2012 another order was issued by respondent No. 3 stating that the terms and conditions of the order dated 5.12.2006 have not been complied with, accordingly, the order dated 13.1.2009 was revived and the slaughter house was ordered to be closed with immediate effect. Ever since April, 2012 the slaughter house, i.e. M/s. Pashu Vadhshala, Mohalla Kamal Gadha, Varanasi is not functioning and the petitioner who was running his business in the said slaughter house is unable to carry out his business. The period of the licence granted to the petitioner has expired. It is alleged that the petitioner submitted an application on 10.1.2013, praying for extension/renewal of the licence granted to him earlier, but no action was taken by the Nagar Nigam, Varanasi, rather it expressed its inability to do so citing various objections raised by the Board. Against this factual background the instant writ petition has been filed.

2. We have heard the learned counsel for the petitioner as well as the learned Standing Counsel appearing for respondent Nos. 2 Nagar Nigam and respondent No. 3 U.P. Pollution Control Board (hereinafter referred as 'Board') and have also perused the record.

3. The submission on behalf of learned counsel for the petitioner is that obligation to comply with the directions of the respondent No. 3 as contained in its orders dated 5.12.2006 and 5.2.2009 is upon the Nagar Nigam, Varanasi but on account of non-compliance of the directions, it is the petitioner who is being made to suffer as the slaughter house has been closed and the petitioner is unable to carry out his business. Violation of the fundamental right as guaranteed under Article 19 of the Constitution of India has been alleged. It was submitted that it is for the Nagar Nigam to reallocate the slaughter house elsewhere.

4. The attention of the Court was also invited to the decree dated 25.7.1971 passed in a suit filed by similarly situated licensees against the Nagar Nigam which had become final. It was further submitted that the Nagar Nigam may take necessary steps for reallocation of the slaughter house and the petitioner shall cooperate in the same. Reliance was placed by the learned counsel for the petitioner upon the judgment of a Division Bench of this Court dated 15.7.2010 passed in Civil Misc. Writ Petition No. 27842 of 2010 and connected writ petitions.

5. Learned counsel for the Nagar Nigam submitted that the slaughter house in question was a private slaughter house situated in a densely populated area, therefore, it cannot be allowed to run on the current location. The closure of the slaughter house is on account of its failure to follow the directions of the U.P. Pollution Control Board and on account of numerous complaints made by local residents. It is further submitted that on 10.1.2013 an application was submitted by the petitioner to run the slaughter house and not for renewing the licence issued earlier.

6. Learned counsel appearing for respondent No. 3-Board invited the attention of this Court to various orders dated 3.8.2006, 5.12.2006, 13.1.2009, 5.2.2009 issued by it and submitted that the slaughter house could not be allowed to operate in view of the environmental aspect involved as its functioning was a danger to the environment of the area. The directions/guidelines imposed by the Board vide its letter dated 5.12.2006 and 5.2.2009 have not been complied.

7. Learned counsel also invited the attention of the Court to a report dated 10.10.2013, Annexure CA-2 to the counter-affidavit filed by the Board. A perusal of this report reveals that an inspection of the slaughter house in question was conducted by the Board on 28.9.2013 in the presence of Dr. Aslam Ansari, Veterinary doctor of the slaughter house as its representative and it was found that the slaughtering of animals was not taking place though 15-20 buffaloes were tethered there. Animals were kept in the slaughter house temporarily and were taken to the slaughter house situated at Kutchery for slaughtering. The report further states that effluent purifier device had not been installed. Provision for disposal of blood etc. resulting from the slaughtering of the animal is through the drain of the Nagar Nigam which fell in the river Varuna and ultimately in the river Ganga.

8. Learned counsel for the respondent No. 3 also invited the attention of this Court to certain orders dated 23.8.2012 and 9.7.2013 passed by the Supreme Court in Writ Petition (Civil) No. 309 of 2003, Laxmi Narain Modi v. Union of India and others, which reveal that the Supreme Court is monitoring the issue pertaining to environmental pollution as a result of functioning of the slaughter houses and the proper implementation of various legislative provisions in this regard. It was also submitted that the orders passed by the Board ordering closure of the slaughter house in question was not challenged by the petitioner.

9. In rejoinder, the learned counsel for the petitioner submitted that he was in fact seeking compliance of the order of U.P. Pollution Control Board for reallocating the slaughter house and as such there was no necessity of challenging the orders passed by it. However, when any onerous condition was imposed by the Board, the petitioner has pleaded for relaxation of the same without compromising with the environment. It is the respondent Nagar Nigam which has not complied with the directions of the Board. The inspection allegedly conducted by the Board on 28.9.2013 was an ex parte one. Further, to the best of the understanding of the petitioner he has complied with the conditions of the U.P. Pollution Control Board. However, reallocation of the slaughter house is to be undertaken by the Nagar Nigam. The petitioner alleges violation of his fundamental right to carry on the trade and business of slaughtering of animal as allegedly available to him under Article 19(1)(g) of the Constitution of India.

10. The right to any occupation, trade or business is not an absolute and indefeasible right. It is subject to reasonable restrictions as per Article 19(6) of the Constitution.

11. The right to carry on slaughtering of animals in a private slaughter house has to conform to the terms and conditions of the licence granted by the competent authority as also to other legislative provisions which may be applicable. The observance of mandatory requirements relating to environmental protection, prevention of cruelty to animals etc. are such reasonable restrictions as are referred in Article 19(6) of the Constitution. The petitioner has not filed the copy of the alleged licence granted to him by the Nagar Nigam so as to enable this Court to ascertain its terms and conditions. However, the fact that a temporary licence was granted to him as asserted in paragraph 8 of the writ petition has not been denied in the counter-affidavit.

12. A perusal of the orders issued by the U.P. Pollution Control Board leaves no doubt that proper measures for environmental protection had not been taken in the slaughter house in question. There is nothing on record to establish that the Nagar Nigam or the petitioner, as the case may be, had complied with the directions/conditions contained in the orders of the Board dated 5.12.2006 and 5.2.2009. Further, the report of the Board dated 10.10.2013 reveals that effluent purification device was not installed in the slaughter house in question. The outflow of blood etc. consequent to the slaughtering of animals is into the drain of the Nagar Nigam which leads to river Varuna and thereafter to river Ganga. Nothing has been shown by the petitioner which may indicate to the contrary. Vague assertions have been made in the rejoinder-affidavit to the effect that the conditions mentioned in the orders of the Board have been complied with by the petitioner to the best of his understanding. Such vague recitals not supported by any proof are meaningless. In view of the deficiencies pointed out by the U.P. Pollution Control Board, the functioning of the petitioner in the slaughter house in question cannot be permitted unless and until the same are rectified/removed.

13. Moreover, the learned counsel for the petitioner very fairly placed before us various orders dated 23.8.2012, 10.10.2012, 27.8.2013, 22.1.2014 and 30.1.2014 passed by the Supreme Court in Writ Petition (Civil) No. 309 of 2003, Laxmi Narain Modi v. Union of India and others, which reveal that the Supreme Court is continuously monitoring the issues relating to the functioning of the slaughter houses in various parts of the country, including State of Uttar Pradesh in the light of Environmental Laws and other legislative provisions as well as the guidelines issued by the Ministry of Environment and Forest, Government of India.

14. On 23.8.2012, the Supreme Court, after considering the stand of the Central Pollution Control Board and the learned counsel appearing for the Ministry of Environment and Forest and after referring to the decision of the said Ministry dated 26.4.2012, which was circulated to all State Governments on 2.7.2012, issued a direction to the Central Pollution Control Board to write to all the State Governments informing them about the guidelines for slaughter houses as well as to initiate action against all slaughter houses which are not meeting the norms and to implement the abattoir rules through State Pollution Control Board. On 10.10.2012, the directions were again issued for constitution of the requisite committee by the State Governments. Thereafter, it appears that the State of U.P. has constituted a State Level Committee in compliance of the order of the Supreme Court. On 27.8.2013, the Supreme Court took notice of the guidelines issued by the Ministry of Environment and Forest for proper and effective functioning of the slaughter houses within the State and also with regard to the transportation of animals, loading and unloading, slaughter and disposal of effluents and solid waste etc. and also with regard to periodical inspection of the slaughter houses by representatives of the State, namely the Animal Welfare Board.

15. In the order dated 27.8.2013, the Apex Court reiterated the importance of proper implementation of various legislative provisions by all the State Governments, the State Animal Welfare Boards, Pollution Control Board etc. and the need to scrupulously follow the guidelines issued by the Ministry of Environment and Forest, in compliance of the direction given by it on 10.10.2012. Thereafter, it has directed all the State Governments and the Union Territories and the Committees constituted to strictly follow the above guidelines. Consequently, directions/guidelines were issued to certain States, including State of Uttar Pradesh to implement the provisions of the Act mentioned therein and file an action taken report.

16. On 22.1.2014, the Supreme Court took cognizance of the affidavit filed by the State of U.P. in compliance of its earlier order and observed as under:

....An affidavit has been filed by the State of U.P. which indicates the names of various Slaughter houses which are indulged in exporting meat. The Report is, however, silent about the method they are using for slaughtering the animals and also whether they are using any modern techniques for slaughtering the animals. Needless to say, modernization of Slaughter Houses has to be taken by the private Slaughter Houses by themselves. In the Action Taken Report it is stated that the Municipal Corporation has arranged an amount of Rs. 86 Lacs for the betterment of the Slaughter Houses in and around Varanasi and Rs. 5 Lacs has been earmarked to the improvement of the building of the slaughter houses at Baniabagh....

17. In this regard the learned counsel for the Nagar Nigam has stated that the slaughter house in question is not included in the list submitted by the Supreme Court. However, he was unable to inform the Court as to why the said slaughter house has not been included therein.

18. On 30.1.2014, the Supreme Court observed in its order as under:

....We notice that there is no periodical supervision or inspection of the various slaughter houses functioning in various parts of the country. Action Taken Reports would indicate that, in many States, slaughter houses are functioning without any licence and even the licenced slaughter houses are also not following the various provisions as well as the guidelines issued by the MoEF, which we have already referred to in our earlier orders......

19. The Supreme Court in paragraph 3 of the aforesaid order further observed as under:

We reiterate the importance of proper implementation of the provisions of the Prevention of Cruelty to Animals (Establishment and Registration of Societies for Prevention of Cruelty to Animals) Rules, 2000, the Environment Protection Act, 1986, the Solid Wastes (Management and Handling) Rules, 2000 and the Prevention of Cruelty to Animals (Slaughter House) Rules, 2000. Over and above, it is also of extreme importance that all the State Governments, the State Animal Welfare Boards, Pollution Control Board etc. should scrupulously follow the guidelines issued by the MoEF, in obedience to the direction given by this Court on 10.10.2012...

20. It is evident from the aforesaid, that the Supreme Court is monitoring the functioning of the slaughter houses as also the strict adherence to the environmental laws in this regard. A perusal of the order dated 23.8.2012, referred to above, reveals that in the guidelines given by Ministry of Environment and Forest, there is a reference to the fact that the State Pollution Control Board has power to close down the slaughter houses. Further with regard to the functions of the State Committee for slaughter houses constituted as per direction of Supreme Court, the following is mentioned:

4. Functions of the State Committee for Slaughter Houses so constituted may be as following:

(i) to identify and prepare a list of all the Slaughter Houses (S.H.s) located within the local self Government (Municipal Corporations, Panchayats etc.)

(ii) to call for reports from the District Magistrate or the Dy. Commissioner and District Food Safety Inspector as the case may be on the condition/functioning of the S.H.s. and also on the compliance of the relevant applicable laws.

(iii) To recommend modernization of old slaughter houses (S.H.s.) and to relocate S.H.s. which are located within or in close proximity of a residential area.

(iv) to recommend appropriate measures for dealing with solid waste, water/air pollution and for preventing cruelty to the animals for slaughter.

(v) to carry out surprise and random inspections of S.H.s. regularly and to issue directions for compliance of the recommendations that may be made by it.

(vi) To send bi-annual reports on the state S.H.s. to the Central Committee and to refer issues that may require Central Committee recommendations or Central Government assistance.

(vii) to accord final approval for licensing of S.H.s. to Local Self Government.

(viii) to identify on an ongoing basis, the unlicensed slaughter houses in the region, and other unlicensed, unlawful establishments where animals are being slaughtered, on howsoever a small scale, and take the help of the District Magistrate and other law enforcement agencies to crack down on the same.

(ix) To check for child labour.

21. In view of the above, any permission to run the slaughter house or any licence for slaughtering animals in a private slaughter house can only be granted after fulfillment of the requirements of various legislative provisions and the orders of the Supreme Court, as referred above, and not otherwise.

22. So far as the submission of the learned counsel for the petitioner that it is the Nagar Nigam which has not complied with the directions issued by the Board and it is for the Nagar Nigam to reallocate such slaughter house is concerned, in this regard we find that the slaughter house in question is a private one as distinct from Corporation's slaughter house. In this regard it is relevant to refer to Section 2(42) of the U.P. Municipal Corporations Act, 1959 which defines "Corporation slaughter house to mean a slaughter house vested or managed by the Corporations." Section 421 of the said Act provides that for the purposes of this Chapter all markets and slaughter houses other than Corporation market and slaughter house shall be deemed to be private market and slaughter house. Thus, it is evident that a private slaughter house neither vests in the Nagar Nigam nor it is managed by it.

23. The Supreme Court in its order dated 22.1.2014 has categorically observed that modernization of the slaughter house is to be taken by the private slaughter houses by themselves. In view of the said observation, the modernization of private slaughter house is to be undertaken by them. However, u/s 114(xxi) of the Act of 1959 the Nagar Nigam is duty bound to make reasonable and adequate provision, by any means or measures which it is lawfully competent to use or to take regarding "regulation of all markets and slaughter houses". The Nagar Nigam u/s 541(29) is empowered to make bye laws and Rules for controlling and regulating the sanitary conditions of markets and slaughter houses and preventing the exercise of cruelty therein. As per Section 423 of the Act of 1959, the Corporation/Nigam is empowered to determine whether the establishment and maintenance of a new private slaughter house shall be permitted in the city or any specified portion of the city. Therefore, the Nagar Nigam is duty bound to perform its part of the statutory obligations under the Act of 1959 and its Bye laws.

24. The reliance placed by the learned counsel for the petitioner upon the judgment dated 25.7.1971 passed in regular Suit No. 60/67 and 66/67 is misplaced as the said judgment does not restrain the Nagar Nigam or other authority to take any subsequent action in accordance with law, rather, it specifically permits such acts. In the said case, the Civil Court granted relief so far as the closure of the slaughter house on the strength of the Government order dated 17.4.1964 is concerned which was held to be without jurisdiction.

25. The Board has the power to order closure of such slaughter houses if they do not fulfill the mandatory requirements of the environmental laws. The orders dated 3.8.2006, 5.12.2006, 13.1.2009, 5.12.2009 and 29.3.2012 issued u/s 33A of the Water (Prevention and Control of Pollution) Act, 1974 have not been challenged by the petitioner at any point of time.

26. In view of the above, the relief claimed by the petitioner for grant/renewal of its licence cannot be granted unless and until the aforesaid requirements are fulfilled. As there is nothing on record to establish the fulfillment of the aforesaid requirements, no relief can be granted in this writ petition.

27. For the reasons stated aforesaid, we are not inclined to interfere in the matter or issue any direction to the Nagar Nigam or to the Pollution Control Board with regard to renewal of the licence. We find that the matter is being monitored by the Supreme Court in Laxmi Narain Modi v. Union of India and others, in which 26th February, 2014 has been fixed. Therefore, we dispose of the writ petition with a direction that it would be open to the petitioner to move an appropriate application in the pending writ petition before the Supreme Court.
O R